Syed Basheer Ahmed v. M/S Tinni Laboratories Private Limited & Anr.
Order
1. A suit for specific performance was decreed by the trial court, which
was dismissed by the High Court in appeal, reversing the judgment
and decree. The suit was filed by the plaintiff, the appellant herein,
alleging that an agreement was entered into with the 1 st defendant,
the 2nd respondent herein, for purchase of two properties which are
more fully described as Item No.1 and Item No.2. Admittedly, Item
No.2 belonged to a third party and Item No.1 was owned by the
2nd respondent. The 2 nd respondent made the plaintiff believe that
he was in possession of Item No.2 property which he had agreed
to purchase from its real owner. The 1 st respondent who was the
2nd defendant in the suit later purchased both Item No.1 and 2 and
made valuable constructions thereon. The trial court based on the
evidence, found that the plaintiff was always ready and willing to
pay the balance consideration and time was never the essence of
contract since it stood extended from time to time till 12.02.1985. The
trial court rejected the contention raised regarding material alteration
in the agreement and decreed the suit.
2. The High Court, however, on a reading of the basic document
produced, the sale agreement, found that there is clear alteration
in so far as the recitals with respect to Item No.2, which was also
written in a different ink. Relying on Seth Loonkaran Sethiya v.
Mr. Ivan E. John and Ors.1, the High Court found material alteration
and reversed the decree of the trial court.
3. Mr. G. Sivabalamurugan, learned counsel appearing for the
appellant argued that on 15.07.1984, an agreement was entered
into for sale of 2.40 acres, for a total sale consideration of
Rs.56,000/- and an advance of Rs.1,000/- was paid. The agreement
referred to both Item Nos.1 and 2, the former belonging to the
1st defendant and the later belonging to the second. The period
within which the sale deed was to be executed was three months.
The plaintiff was always ready and willing to pay the balance sale
1 (1977) 1 SCC 379
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Supreme Court Reports
consideration and on 11.10.1984, within the three month period, a
notice was issued to the 1 st defendant, expressing the readiness
and willingness to pay the balance consideration and requiring
the execution of the sale deed. The 1 st defendant replied by a
letter dated 22.01.1985, demanding the balance amount with
18% interest. On 11.02.1985, the 1 st defendant sold Item No.2
to 2 nd defendant and later on, a demand draft of Rs.1,000/- was
sent, purportedly in refund of the advance which was returned
by the plaintiff. Subsequently, on 09.03.1985 again, 1 st defendant
sold Item No.1 to 2 nd defendant, before which the suit for specific
performance was fled on 01.03.1985.
4. The learned counsel read over to us the judgment of the trial court
and argued that the High Court erred in reversing the findings and
the judgment and decree passed by the trial court. It is pointed out
that there was clear evidence regarding the agreement and having
established the readiness and willingness, the trial court had rightly
passed the decree, especially when there was no evidence led on
behalf of the 1 st defendant. The alteration was never urged before
the trial court by the 1 st defendant nor was there any deposition to
that extent. An alteration could not have been found by the High
Court merely on looking at the documents and it should have been
properly analyzed with an expert as provided under Section 73 of
the Indian Evidence Act, 1872.
5. Mr. D. Ramakrishna Reddy learned counsel for the respondents,
on the other hand points out that the 2 nd defendant was always in
possession of the property. The interpolation found by the High Court
was on a mere reading of the documents, which is permissible, and
Section 73 has no application. The High Court observed that the
interpolation is so blatant, the agreement having been written in two
different inks, there is no cause for interference to the judgment of
the High Court.
6. Trite is the principle that the plaintiff should establish his case before
the defendant is called upon to offer his defense by disproving the
case of the plaintiff and rebutting any presumption that could have
been drawn from the circumstances. The relief of specific performance
was sought for, based on the agreement produced by the plaintiff
himself. The High Court has looked at the agreement to find material
Syed Basheer Ahmed v.
M/s Tinni Laboratories Private Limited & Anr.
alteration which according to the High Court is clearly discernible;
especially when two inks were used in the agreement. The details
of Item No.2 as also the alleged agreement to sell that plot, was
found to be clearly interpolated in the agreement. The agreement,
hence, was found to be tainted and in those circumstances, the suit
had no legs to stand.
7. True, the 1 st defendant did not enter the box to give evidence but
filed a written statement pointing out the material alteration. The 2 nd
defendant, who stepped into the shoes of the 1 st defendant entered
the box and gave evidence. Hence, it cannot be said that there was
no plea regarding material alteration, which was found by the High
Court on a mere perusal of the document; on which document, the
entire suit was based on.
8. In this context we cannot but notice that the agreement, a translated
copy, produced at Annexure-1 speaks first of an extent of 1.40 acres,
presumably Item No.1 with total consideration fixed at Rs.56,000/- @
Rs.40,000/- per acre. Then the agreement speaks of Item No.2 with
an extent of 1acre as having been included in the agreement to sell.
However, the Schedule shows a total extent of 2.40 acres from which
50 cents is sold. No reliance can be placed on such an agreement
with different extents in the recitals and the schedule, to grant specific
performance. Further, the readiness and willingness established is
by account statement of the plaintiff showing credit of Rs. 70,500/-.
If both items of property are included in the sale agreement, then
the total consideration would be Rs. 96,000/- @ Rs.40,000/- per
acre. Deducting the advance the balance sale consideration will be
Rs.95,000/-. The claim of readiness and willingness of the plaintiff
hence falls flat.
9. Pertinent is also the fact that the plaintiff before the trial court gave
up his claim for conveyance of the 2nd item and pressed only the first
part of the agreement clearly putting to peril his prayer for specific
performance based on the tainted agreement. We are not convinced
that Section 73 has any application and in finding material alteration
the courts are not obliged to always refer it to an expert; especially
when it is clearly discernible on a mere perusal of the document,
that too written in a different ink. Even otherwise, as found by us,
the plaint fails.
1492 [2025] 8 S.C.R.
Supreme Court Reports
10. We find absolutely no reason to interfere with the judgment of the
High Court and reject the appeal. No costs.
11. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal rejected.
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